CNN in the Crossfire

FBI Tried to Subpoena Lindh Interview

CNN had a big scoop on December 19, when the network broadcast a half-hour interview with John Walker Lindh in a hospital bed, pledging his allegiance to the jihad. But according to Robert Young Pelton, the freelancer who spoke to Lindh in Afghanistan, CNN decided to broadcast the full interview shortly after the FBI began threatening to subpoena the tape in mid December. And now, whatever CNN intended, the extensive media coverage of the case appears to have cost Lindh his right to a fair trial.

Recall that Lindh became famous overnight. Before December 2, when CNN reported that he had been taken into custody, he was a faceless minion behind enemy lines. Just two months later, Lindh has replaced bin Laden as the face of evil, and CNN's interview has become a key piece of evidence in the criminal case that kicked off in Virginia last week. He has not yet been indicted.

The Lindh interview may turn out to be a case study in how the government can put the squeeze on the media. Here are some of the facts known so far: Pelton, the author of several travel books, had no experience as a journalist until last fall, when he got an invitation to spend time with a warlord who was fighting with a team of Green Berets in Afghanistan. He called CNN, which immediately sent him a cameraman, after which he filed several stories. One of them was his Lindh interview, which he conducted in a hospital near Mazar-i-Sharif and which first aired on December 2around the same time Lindh was taken into military custody.

When Pelton sent the two-minute segment by satellite, "It was a big deal for CNN," he told the Voice. "CNN's going through a lot of troubles financially, and they're driven as much by viewers as by news judgment. So when this tape came over the transom, they were saying, 'We've got a scoop!' "

Pelton returned from Afghanistan on December 17. About a week before that, he said, he heard that the FBI was talking to CNN, and a top CNN exec told the cameraman, "Don't lose that tape!" However, it is standard for news organizations to resist turning over raw reporting material for use in a court of law. To avoid the subpoena, Pelton says, CNN worked out a deal whereby it broadcast an edited tape and posted an all-but-complete version on the Internet.

By placing the tape in the public domain, legal experts say, network execs pulled off a neat trick. They gave prosecutors the evidence they wantedand avoided being served the subpoena. That way CNN could duck the bad publicity from either resisting or complying with the subpoena.

A CNN spokesperson issued the following statement: "In certain investigations, federal criminal rules often do not allow parties to discuss whether they've been served with a subpoena. CNN understands that this is that type of investigation, so we cannot talk about it one way or another." Pressed to explain a broadcast that became so prejudicial, he said, "We aired the interview because it was newsworthy and it was exclusive."

Marc Garber, a former prosecutor turned defense attorney, said that it's natural for the Justice Department to want to "keep a tight lid on the evidence" and for CNN to want to "get out in front of the story."

"I don't think CNN or the government would want to be seen as getting in bed in something as sensitive as this," said Garber. "This is the system that's being attacked by terrorists, so if you're the government, you want this to be the fairest trial. If you saddle up to CNN or put the screws to them, you're going to cause yourself more harm in the long run."

Again: Lindh has not yet been indicted. So far, according to Pelton, the only evidence being cited by the government are Lindh's statements to CNN and to FBI agents, and Pelton's statements to the media. Last week, Lindh's lawyer James Brosnahan questioned the admissibility of Lindh's FBI statements because, he said, his client was denied the right to counsel for 54 days after he was taken into custody. (The government says Lindh signed a waiver of his right to counsel.)

It's unclear what evidence will turn up at trial. Some legal insiders seem to feel that the CNN interview will be admitted, based on the government's argument that it was a voluntary statement given to a third party. But they say Brosnahan will try to undermine the CNN interview by arguing that Lindh did not fully consent to the interview, that he was being given morphine at the time, or that CNN was acting as an arm of the U.S. government. Brosnahan did not return calls for comment.

According to defense attorney Mark Geragos, the FBI's failed attempt to subpoena the tape suggests that CNN was "not in cahoots with the government." The bigger question, he said, is "How did CNN get access to somebody who was supposedly in military custody?" To get the answer to that enigma, Geragos predicted, Brosnahan will want to depose Pelton, the CNN cameraman and producers, and whoever was in command of the Special Forces at Mazar-i-Sharif. Finally, because prosecutors need witnesses to support Lindh's statements, Geragos said they may end up using some of the prisoners currently being held in Guantánamo Bay to testify against him.